Wednesday, February 24, 2010

3d DCA Watch -- RIP Judge Fletcher


We'll dispense with the yuks this week and honor the outstanding service of former 3d DCA Judge John Fletcher, who sadly passed away Monday.

On to the opinions......

Seymour v. Panchita:

Two little words on your summons, but they are muy importante -- "registered agent":
A summons properly issued and served is the method by which a court acquires jurisdiction over a defendant. A rather straightforward group of rules and statutes sets out bright-line, well-tested procedures for preparation and service of the summons with the complaint. Despite those clear-cut provisions andprocedures (and because lawyers and process servers are as fallible as any other group), the rules are occasionally disregarded, twisted, or tested.

In this case, the summons and return of service erroneously identified Jorge Ramos personally as the individual being served. The summons and return of service did not state that the corporation (appellee, Panchita Investment, Inc.) was served, or that Ramos was only being served as a registered agent or corporate officer of a corporation. Most defendants receiving initial legal papers are not lawyers, and the persons who are to supervise the preparation and filing of those papers are ordinarily licensed to practice law. A non-lawyer receiving the summons and complaint in the record here might reasonably conclude that he or she was served erroneously. If the intention was to sue Jorge Ramos individually, the complaint fails to state that and Ramos could safely disregard the papers. If the intention was to sue Panchita, the summons fails to state that and Panchita could assume that the plaintiffs failed to specify which “person,” the individual or the corporation, they intended to sue. In this case, Panchita filed no pleading or paper in the case until it moved to vacate the final judgment after default, so no waiver argument can succeed.
Eventys Marketing v. Comcast:

You need to challenge the enforceability of no-class-action-waivers at the outset (at least until the Florida Supreme Court rules on the issue):
In this case, Eventys had accepted the “terms and conditions” in its dealings with Comcast and was aware of the arbitration provisions, including the waiver of class action provision. Eventys did not seek in its initial circuit court filing a determination that the arbitration requirements (whether in their entirety or simply the class action waiver provisions) were unenforceable on grounds of public policy or unconscionability. Applying the “gateway” analysis to the record here, we conclude that the trial court correctly refused on remand from Comcast I (1) to allow Eventys to challenge arbitrability a second time through its motion to amend and (2) to direct the parties to submit the issues regarding the class action waiver provision (and the class action claims themselves) to the arbitrators.
RIP Judge Fletcher.

4 comments:

  1. Off topic, but the ABA is completely effing useless.

    ReplyDelete
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